Article excerpt

As the Supreme Court prepares to hear two cases on gay marriage,
opponents say the 1973 Roe v. Wade case should be a warning about
establishing a broad constitutional right on a delicate issue.

When the U.S. Supreme Court hears a pair of cases on same-sex
marriage on Tuesday and Wednesday, the justices will be working in
the shadow of a 40-year-old decision on an entirely different
subject: Roe v. Wade, the 1973 ruling that established a
constitutional right to abortion.

Judges, lawyers and scholars have drawn varying lessons from that
decision, with some saying that it was needlessly rash and created a
culture war.

Justice Ruth Bader Ginsburg, a liberal and a champion of women's
rights, has long harbored doubts about the ruling.

"It's not that the judgment was wrong, but it moved too far, too
fast," she said last year at Columbia Law School in New York.

Briefs from opponents of same-sex marriage, including one from 17
states, are studded with references to the aftermath of the abortion
decision and to Justice Ginsburg's critiques of it. They say the
lesson from the Roe decision is that states should be allowed to
work out delicate matters like abortion and same-sex marriage for
themselves.

"They thought they were resolving a contentious issue by taking
it out of the political process but ended up perpetuating it," John
C. Eastman, the chairman of the National Organization for Marriage
and a law professor at Chapman University in California, said of the
justices who decided the abortion case. "The lesson they should draw
is that when you are moving beyond the clear command of the
Constitution, you should be very hesitant about shutting down a
political debate."

Justice Ginsburg has suggested that the Supreme Court in 1973
should have struck down only the restrictive Texas abortion law
before it and left broader questions for another day. The analogous
approach four decades later would be to strike down California's ban
on same-sex marriage, in one of the cases before the justices, but
leave in place prohibitions in about 40 other states.

The second case, from New York, challenges a federal law that
requires the government to deny benefits to gay and lesbian couples
married in states that allow such unions.

Theodore J. Boutrous Jr., a lawyer for the two couples
challenging California's ban, said the Roe ruling was a different
case on a different subject and arose in a different political and
social context. The decision was "a bolt out of the blue," he said,
and it had not been "subject to exhaustive public discussion, debate
and support, including by the president and other high-ranking
government officials from both parties."

"Roe was written in a way that allowed its critics to argue that
the court was creating out of whole cloth a brand-new constitutional
right," Mr. Boutrous said. "But recognition of the fundamental
constitutional right to marry dates back over a century, and the
Supreme Court has already paved the way for marriage equality by
deciding two landmark decisions protecting gay citizens from
discrimination."

The author of the majority opinions in those two cases, Justice
Anthony M. Kennedy, seemed to address the current cases in wary
terms in remarks this month in Sacramento, California.

"A democracy should not be dependent for its major decisions on
what nine unelected people from a narrow legal background have to
say," he said.

In Justice Ginsburg's account, set out in public remarks and law
review articles, the broad ruling in the abortion case froze
activity in state legislatures, created venomous polarization and
damaged the authority of the court.

"The legislatures all over the United States were moving on this
question," Justice Ginsburg said at Princeton in 2008. "The law was
in a state of flux."

"The Supreme Court's decision was a perfect rallying point for
people who disagreed with the notion that it should be a woman's
choice," she added. …

Rhetoric of Justice RuthBaderGinsburg: Brief Comparison of the Language of the Advocate with the Language of the JusticePeratis, Kathleen.
Columbia Journal of Gender and Law, Vol. 25, No. 1, Summer 2013

Conversations with Outstanding Americans: Sandra Day O'Connor Elected in 1981 as the First Woman to Sit on the Supreme Court, Justice O'Connor Has Proved to Be Both a Pragmatic, Conservative Voice and a Coalition-Builder. Her "Swing Vote" Has Often Tilted Major Rulings. Series: O'Connors Main Impact Is in the Area of Reproductive Rights, Church and State and Race. BY MELANIE STETSON FREEMAN - STAFF. 2) HISTORIC DAY: O'Connor Is Sworn Is by Chief Justice Warren Burger, Sept. 25, 1981, as Her Husband, John, Looks on. MICHAEL EVANS/UPI. 3) THE HIGH COURT,1994 : Clarence Thomas, Antonin Scalia, O'Connor, Anthony Kennedy, David Souter, Stephen Breyer, John Paul Steven, William Rehnquist, RuthBaderGinsburg. KEN HEINEN/ AP. 4) FOREIGN MATTERS: O'Connor, Meeting Visiting Bosnian Judges Last Month (above), Actively Backs an Independent Judiciary in East Europe. TYLER MALLORY/APRobert Marquand, writer of The Christian Science Monitor.
The Christian Science Monitor, January 28, 1997